White House Memo Leak Not Expected to Change Terrorism Policy

Senators had threatened holding up national security nominees ahead of leak.

President Barack Obama shares a laugh with chief counterterrorism adviser John Brennan, his nominee to lead the CIA.
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A White House memo leaked that summarized the Obama administration's justifications for killing Americans who are believed to be top level al Qaeda operatives, even without proof they are pursuing terrorist acts in the United States, was met with a largely muted reaction Tuesday, with the exception of civil liberties groups.

According to the memo, obtained by NBC News, such targets would need to meet three standards: present an imminent threat of violent attack, their capture is determined to be infeasible and the kill operation is consistent with the laws of the conflict.

The American Civil Liberties Union proclaimed the memo a "profoundly disturbing document."

"It summarizes in cold legal terms a stunning overreach of executive authority – the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement before or after the fact," said Hina Shamsi, director of the ACLU's National Security Project, in a released statement.

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The ACLU is already seeking public access to documents surrounding what it calls the "U.S. targeted killing program" and the number of drone-caused civilian casualties, in a case before the D.C. Circuit Court of Appeals, which is scheduled to hear oral arguments in September.

The memo's leak comes at a particular time politically, as a bipartisan group of senators—eight Democrats and three Republicans—issued a letter to the White House Monday, just prior to the memo leak, pressing for "the secret legal opinions outlining [White House] authority to authorize the killing of Americans in the course of counterterrorism operations."

The senators' request also included the threat of holding up the Obama administration's new national security nominees, presumably Chuck Hagel for Secretary of Defense and John Brennan as CIA director.

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"It's not the best way to provide transparency, but it's better than nothing," says James Lewis, director of technology and public policy program at the Center for Strategic and International Studies, a Washington, D.C.-based bipartisan think-tank.

Lewis says the Obama administration, like the Bush administration before it, is coping with a war on terror that is unlike traditional wars of the past and is seeking a legal, pragmatic path forward.

"It's really the frequency and the context [of the killings]," he says, which can be the issue. "If you use this power rarely and in situations that are really clear, it's going to not produce as many objections than if you use the power a lot in situations that are not clear.

Bush was heavily criticized for many of the secret or questionably legal acts he took in the name of national security, especially by then-candidate Barack Obama, but Lewis says the criticism may not take into account the full reality of the changing world.

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"I observe a really simple test – would you like another 9/11, yes or no? And if the answer is taking these actions reduces the chances of another 9/11, not that many Americans would object," he says. "You get some people saying, 'we don't have to' and 'the threat's overstated.' The problem is I heard all that in the 1990's about al Qaeda."

Ken Gude, chief of staff and vice president at the Center for American Progress, a liberal-leaning Washington, D.C.-based think tank, says the release of the memo marks increased pressure on the administration for greater transparency.

"From what has been uncovered or released so far, I think there are some sound reasons to support some of the decisions they have made, but there are real questions as well about the extent of the determinations that have been made about which groups can be targeted and who in those groups can be targeted," he says. "There's now going to be more pressure for a more open conversation about that."

Gude also noted that some of the Republican senators pressing for more information from the Obama administration were less concerned with public legal justifications from the Bush administration.